Tuesday, September 15, 2009

Lord High Executioner

See, I thought I'd be writing today about two of the odder legal quests of recent years:

The judge who sued his dry cleaner for $54 million (yes, you read that right) after it lost a pair of his pants, lost at trial, and lost again in the court of appeals (story here, opinion here);

The tax lawyer who failed to convince either the New York courts or the federal Tax Court to allow him to deduct as medical expenses $100,000 for prostitutes and pornography (story here, opinion here).

But the news cycle has a life of its own, and what figured to be a very brief and alas final comment on the killing of Romell Broom (earlier posts on Broom's case here and here and here and here and here) by the State of Ohio, well, let's just say it was an dramatic day.

The 6th Circuit denied relief and a stay overnight. Broom's attorneys asked the entire 6th Circuit to review the opinion. The killing, scheduled for 10 a.m., was delayed while the court was refusing that request. So sometime around 1:00 this afternoon (the execution warrant is good for the calendar day) they began the killing.

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We pause now to get some necessary background through a history lesson.

From 1897 until 1993, Ohio's sole legal method of execution was the electric chair. Ol' Sparky, as it was known, took the lives of 312 men and 3 women. In 1993, Ohio's execution law was amended to allow the condemned to elect lethal injection rather than electrocution though electrocution remained the default method. In 1999, Wilford Berry was killed by lethal injection, the first person murdered by the state of Ohio in 36 years. In 2001, the law was amended again as the Ohio General Assembly formally abandoned the use of the electric chair. Since then, the only method of execution in Ohio has been lethal injection.

Lethal injection seems clinical, "like putting a dog to sleep" is what its advocates say. But it's not without its problems.

Ohio uses a series of three drugs to kill:

Thiopentol sodium, a fast-acting, short-term barbiturate that, if all goes well, puts the condemned person into a state of deep anesthesia in which he (they've all been men so far) will feel nothing;

Pancuronium bromide, a muscle relaxant that prevents all voluntary motion; in effect, pancuronium leaves the condemned paralyzed, unable to communicate in any fashion;

Potassium chloride, a salt; as it passes through the body, it causes every muscle to contract sharply (though not if there's enough pancuronium in the system); then it stops the heart within seconds.

With variation only in incidental details, this is the system used in every legal lethal injection to date in the U.S. Experts all agree that if everything goes the way it's supposed to, execution by lethal injection will take just a few minutes and be essentially painless but for the pinprick pain of the IV being inserted.

The thing is that everything doesn't always go as planned. It's clear that in some percentage of exectutions around the country, insufficient doses of thiopentol have been used. When that happens, the condemned person suffers a horrific, agonizing death, effectively, he's tortured to death. And because of the pancuronium, the person cannot indicate that the anesthesia never took or wore off.

Part of the problem is that the people who are doing the killing aren't trained anesthesiologists (they screw up sometimes, too, of course). Just who they are varies from state to state, but they've included doctors who can't get hospital privileges anywhere, felons doing time for drug offenses, former EMTs, and . . . . Well, we really don't know who all does the work. It tends to be a secret, and we have information from only a few states.

The U.S. Supreme Court, in a case out of Kentucky, a state that had had but one lethal injection and that one seemed to go OK, said that what Kentucky seemed to be doing was constitutionally adequate, at least from what they could tell. Here in Ohio, there's been all sorts of litigation.

In state court, a trial judge decided in the cases of Ruben Rivera and Ronald McCloud, who were facing capital charges but hadn't actually been tried, that Ohio's method of lethal injection was unconstitutional because Ohio inmates had a right created by state statute to a painless lethal injection death and Ohio's killing system carried an unnecessary risk of inflicting pain. The court of appeals said his opinion wasn't a final order, and it's been wholly ignored by the state.

A general civil rights challenge in federal court has been going forward for five years or so. Next month, the judge is scheduled to hold two weeks of trial on whether Ohio's execution method is constitutional.

The Sixth Circuit Court of Appeals has been all over the place on the issue, reaching a series of fractured decisions but suggesting that somehow it needs to resolve the question.

And then there's the statute. Back in the day when they only killed by electrocution, Ohio's execution statute just said to run enough electricity to kill. Lethal injection has been different from the time they first made it an option, requiring that death by drug be caused "quickly and painlessly." The current version continues that:

[A] death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead.

But there's a catch. A separate section of the statute says that if it should happen that death by lethal injection is determined to be unconstitutional, the state can kill

by using any different manner of execution prescribed by law subsequent to the effective date of this amendment instead of by causing the application to the person of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death, provided that the subsequently prescribed different manner of execution has not been determined to be unconstitutional. The use of the subsequently prescribed different manner of execution shall be continued until the person is dead.

OK? In simple English: If a painless lethal injection should be unconstitutional, then you can be killed by any method the state cooks up, painless or otherwise.

So we have this method of killing, and bodies are dropping like flies until May 2, 2006. That's when it took 87 minutes to kill Joe Clark. They stuck him with needles 19 times trying to get the IV inserted. When they began with the drugs, he lifted his head from the table. "It's not working. It's not working," he said. He asked if they couldn't just give him poison to take by mouth. He moaned and groaned as they tried again.

So Ohio put together a commission to study what went wrong and how it could be done better. An interesting commission it was. All lawyers and prison guards and wardens. No medical personnel. And what they decided (I'm oversimplifying here) was that they'd be more careful and take their time in the future.

Just over a year later, they killed Chris Newton. It took an hour and fifty-three minutes. They gave him a bathroom break in the middle (no, I'm not kidding). Afterwards, the head of the prison system and the governor both said that the execution went perfectly. The new protocol, they said, worked just the way it should. At a press conference, I said that they were either delusional or lying. The press quoted me, but not that line.

Ohio’s method of execution by lethal injection is a system replete with inherent flaws that raise profound concerns and present unnecessary risks.

And the state fiddled with its protocol again, tinkering around the edges but not addressing any of the substantive concerns.

So here's what we know. Ohio has a history of screwing up lethal injections. Ohio doesn't much care and doesn't really intend to do anything about it.

End of history lesson.

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So they began trying to kill Romell Broom at around 1:00 this afternoon. Two hours later, they were still trying. AP describes how the worked. They'd tried his arms, his legs, his arms again. He tried to help, he grimaced in pain. They took a break.

Broom's lawyers were frantically trying to reach the governor, the Ohio Supreme Court, a state court, and a federal judge. This was torture, and there was no end in sight other than midnight when the execution warrant would expire.

Finally, someone got through and the Governor called a halt. Enough. Really, quite extraordinary that last minute reprieve. Like something out of the movies. Here's what he said:

1. Romell Broom is currently in the custody of the Ohio Department of Rehabilitation, has been sentenced to death, and the Ohio Supreme Court scheduled his execution for September 15, 2009.2. Difficulties in administering the execution protocol necessitate a temporary reprieve to allow the Department to recommend appropriate next steps to me.3. Ohio Revised Code Section 2967.08 provides that the Governor may grant a reprieve for a definite time to a person under sentence of death, with or without notices or application.4. Accordingly, I direct that the sentence of death for Romell Broom be reprieved until September 22, 2009.5. Mr. Broom should remain incarcerated in the custody of the Ohio Department of Rehabilitation and Correction. The Department should carry out Mr. Broom’s sentence on that day unless further reprieve or clemency is granted.6. I signed this Warrant of Reprieve on September 15, 2009 in Columbus, Ohio. Ted Strickland, Governor

So they tried to kill him, they failed, and they're to try again next week. Maybe.

Whenever I speak about the death penalty in a high school class, someone always asks what happens if they don't manage to kill the guy. My glib answer has been, "They get to try again." The sentence is death, not "attempt to kill." I take that answer from the tale of Willie Francis.

In 1946, Louisiana had trouble with the electrocution of Willie Francis. He didn't die. By the time they were ready to try again, he was in court. In a matter of months (things moved more swiftly in those days than they do today), they were in the U.S. Supreme Court. The case is State of La. Ex rel. Francis v. Resweber, and it was then and is now the only case of its kind to be decided by the court. And it's not really much help.

By a 5-4 vote, the Court said that Louisiana could try again to kill Francis. But there is no majority opinion. The plurality wrote all of six paragraphs. And there was serious concern about whether either the Cruel and Unusual or Double Jeopardy Clauses of the Constitution even applied to Louisiana. The legal landscape has changed consideerably since then. It's less clear that the law has. But damn, we're gonna see.

Amid all the uncertainty, here's what I know:

It's not easy to kill people in a nice way, and in fact there is no nice way to do it.

The people at the prison charged with killing Broom don't have a clue how to do it.

The governor would dearly like some court to step in and stop the execution so he doesn't have to decide whether to stop it.

The courts are going to be mighty busy with this one, and unless they all blow it off (which isn't impossible), Broom has a lot more than a week left.

Lawrence Reynolds is scheduled for October 8. The system might be on hold by then. Or maybe not.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.